Obesity remains a serious health problem and it is no secret that many people want to lose weight. Behavioral economists typically argue that “nudges” help individuals with various decisionmaking flaws to live longer, healthier, and better lives. In an article in the new issue of Regulation, Michael L. Marlow discusses how nudging by government differs from nudging by markets, and explains why market nudging is the more promising avenue for helping citizens to lose weight.

Two long wars, chronic deficits, the financial crisis, the costly drug war, the growth of executive power under Presidents Bush and Obama, and the revelations about NSA abuses, have given rise to a growing libertarian movement in our country – with a greater focus on individual liberty and less government power. David Boaz’s newly released The Libertarian Mind is a comprehensive guide to the history, philosophy, and growth of the libertarian movement, with incisive analyses of today’s most pressing issues and policies.

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Bush Should Feel Doctors’ Pain

Since the late 1990s, the U.S. Drug Enforcement Administration has allied with state and local law enforcement agencies to stamp out abuse of the painkiller OxyContin. Citing rises in emergency room episodes and overdoses associated with the drug (both of which have been roundly disparaged by critics), the DEA insists its “Operation OxyContin” is a necessary reaction to the diversion of the prescription narcotic for street use.

Unfortunately, despite frequent robberies and burglaries of pharmacies, doctors’ offices, and warehouses where prescription medications are stored and sold, the DEA has focused a troubling amount of time and resources on the prescriptions issued by practicing physicians. It’s easy to see why. Doctors keep records. They pay taxes. They take notes. They’re an easier target than common drug dealers. Doctors also often aren’t aware of asset forfeiture laws. A physician’s considerable assets can be divided up among the various law enforcement agencies investigating him before he’s ever brought to trial.

Over the last several years, hundreds of physicians have been put on trial for charges ranging from health insurance fraud to drug distribution, even to manslaughter and murder for over-prescribing prescription narcotics. Many times, investigators seize a doctor’s house, office, and bank account, leaving him no resources with which to defend himself. A few doctors have been convicted. Many have been acquitted. Others were left with no choice but to settle.

All of this has been happening just as the field of chronic pain management has made some remarkable progress. The development of opium-based narcotics like OxyContin (also known as “opioids”) has been a Godsend to the estimated 30 million Americans who suffer from chronic pain. Opioids are safe, effective, and, contrary to conventional wisdom, very rarely lead to accidental addiction when taken properly. Most of the medical literature puts the rate of such addiction at less than one percent.

The DEA’s campaign puts law enforcement officials in the troubling position of determining what is acceptable medical practice in a field that’s dynamic, still emerging, and relatively experimental. The very fact that any course of treatment “beyond the normal practice of medicine” can be cause for cops to launch a career-ending investigation is enough in itself to stifle innovation in palliative therapy.

The high-profile arrests and prosecutions of physicians (up to 200 per year, by one estimate) have caused many doctors to under-prescribe or refuse to see new patients. It corrupts the candor necessary for an effective doctor-patient relationship. Many physicians have left palliative therapy for less controversial practice. The Village Voice reports that medical schools are now advising students to avoid pain management practice altogether.

To calm its critics, the DEA commissioned several pain specialists to work with federal officials to put together a set of guidelines for physicians who treat pain with opioids. These guidelines were posted on the agency’s website, and most doctors were led to believe that following the recommendations would keep them safe from prosecution. For a short time, experts, doctors, and drug warriors had reached a compromise.

But it didn’t last long. Late last year the guidelines mysteriously disappeared from the DEA’s website. Their removal coincided with the trial of Virginia pain specialist, Dr. William Hurwitz, whose attorneys had attempted — and failed — to admit the guidelines as evidence on the belief that Hurwitz’s practice conformed to their parameters. Hurwitz was eventually convicted, and faces a life sentence later this month.

A few weeks after Hurwitz’s judge refused to admit the guidelines as evidence, the DEA renounced the contents of the brochure, and in a brief explanatory note made clear that the agency wasn’t bound by any standards or practices when it came to determining what physicians it would investigate. The agency essentially declared it had carte blanche to launch an inquiry.

The renunciation sent shockwaves through the medical community. One doctor told the Washington Post that “over 90 percent” of patients and doctors could be subject to prosecution under the DEA’s new rules. Rebecca J. Patchin, who serves on the board of the American Medical Association, told the Post, “Doctors hear what’s happening to other physicians, and that makes them very reluctant to prescribe opioids that patients might well need.”

David Jorenson, the academic pain specialist who headed up the committee that authored the original guidelines, sent the agency a sharply-worded rebuke. Three professional associations representing pain specialists followed with a letter of their own. And last January, the National Association of state Attorneys General also sent a letter to the DEA, expressing concern that the agency was overstepping its bounds, and interfering with the legitimate treatment of pain. The letter was signed by 30 AGs from both parties.

The DEA remains obstinate, insisting its revocation of the guidelines did not represent a shift in policy, and that its pursuit of doctors should have no effect on legitimate pain treatment, despite that the experts it originally consulted say otherwise.

The attorneys general letter to the DEA in particular presents a challenge for the Bush administration. The White House claims to value the principles of local rule, states’ rights, and federalism. But those principles seem to flitter away when it comes to drug policy. The Justice Department, for example, has repeatedly gone to court to prevent states from allowing physician-assisted suicide and medicinal marijuana, in some cases going so far as raiding convalescent centers and asserting the supremacy of federal law in prosecuting those who grow marijuana in states where it’s permitted.

Thirty state AGs have said that federal drug policy is interfering with legitimate medical practice. The White House now has two choices. It could order the DEA to end its pursuit of physicians, and leave medical policy to state governments and medical boards, where it belongs.

Or it could stand by the DEA’s troubling anti-opioid campaign, and watch as more well-intentioned physicians go to jail, and millions of Americans continue to endure unnecessary grief.